Sarjantson v Humberside Police

The police duty under article 2 to take reasonable operational measures against a real and immediate risk to life is not confined to identified or identifiable victims. It may arise where the police know, or ought to know, that people are exposed to such a risk during violent disorder.

Liability must be assessed prospectively, without hindsight. Proof that a timely response would not have prevented the injury concerns damages, rather than liability. The duty may also arise during an ongoing violent incident, although violence has already occurred. Whether it was breached depends on all the circumstances, including the delay, its reasons and the gravity of the known risk.

The first claimant suffered a serious head injury when a gang armed with baseball bats attacked him during continuing violent disorder. Emergency callers had warned the police of assaults, threats and an imminent danger of further serious violence. An internal police investigation subsequently criticised the delay in deploying officers.

The claimants alleged under section 6 of the Human Rights Act 1998 that the police had failed to protect them from violence, contrary to articles 2 and 3 of the Convention. The Central London County Court struck out the claim as having no prospect of success. It held that the operational duty arose only once the first claimant was identified and that an immediate deployment would not have prevented the assault.

The central questions were whether the duty required an identified victim, whether an ineffective response could preclude liability, and whether the duty could arise after an ongoing risk had begun to materialise.

1. Appeal allowed unanimously. The claim was capable of succeeding and was directed to proceed to trial. The operational duty associated with article 2 was capable of arising on the pleaded facts.

2. The duty is not confined to circumstances in which the authorities know, or ought to know, the name or identity of a potential victim. Strasbourg authority showed that article 2 may require either personal protection for an identified target or general protection for members of society. When police receive reports of violent disorder, it is sufficient that they know, or ought to know, that actual or potential victims face a real and immediate risk. Restricting protection to identified persons would be arbitrary, unprincipled and inconsistent with the practical and effective protection of Convention rights.

3. Compliance must be assessed from the circumstances known at the relevant time, without hindsight. At the time of the first emergency call, the police could not know whether or how quickly a further assault would occur. The calls indicated an imminent likelihood that the armed gang would injure or kill someone nearby. The relevant inquiry was whether the police took measures within their powers which, judged reasonably, might have been expected to avoid the risk.

4. Proof that a timely police response would have made no difference does not determine liability. It may affect quantum and may mean that no damages are recoverable. The absence of causative effect does not, however, answer whether reasonable protective measures were taken.

5. The operational duty may arise during an incident in which violence has already begun. Where a gang is threatening or committing violence and the incident remains ongoing, the police may be required to take reasonable measures to avert further violence. Earlier materialisation of part of the risk does not extinguish the duty concerning the continuing real and immediate risk.

6. At trial, the judge was to determine breach in all the circumstances. Relevant matters included the length of the delay, the reasons for it and the gravity of the risk communicated by the emergency callers. Requiring a response within the 15-minute target appeared unlikely, in principle, to impose an unreasonable or disproportionate burden.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously and directed that the claim proceed to trial: [2013] EWCA Civ 1252.
2. Central London County Court: HHJ Walden-Smith struck out the claim as having no prospect of success. She held that the operational duty could not arise before the first claimant was identified and that immediate deployment would not have prevented the assault.